NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A6762B
TITLE OF BILL:
An act to amend the general business law, in relation to the dangers to
safety and health and creation of a public nuisance caused by the sale,
manufacturing, distribution, importing and marketing of firearms
To regulate the sale, manufacture, importation and marketing of firearms
in relation to creating or maintaining a condition that endangers safety
or health through the sale, manufacturing, importing or marketing of
firearms within the guidelines of City of New York v Beretta USA Corp.,
524 F3d 384 (2d Cir. 2008).
SUMMARY OF PROVISIONS:
This bill amends the General Business Law by adding new Article 39-DDDD.
Section 1: Contains Legislative findings and intent.
Section 2: Defines several terms that appear in the bill including
"deceptive acts or practices," "reasonable controls and procedures",
"false advertising", "gun industry member", the terms "knowingly" and
"recklessly", and "qualified product". (§ 898-a 1, 2, 3, 4, 5 and 6).
Section 2 provides further that no gun industry member, as that term is
defined in the bill, shall create or maintain a condition that endangers
safety or health of the public through the sale, manufacturing, import-
ing, or marketing of a "qualified product" as defined in 15 U.S.C.
section 7903(4). ((§ 898-b 1 and 2).
Section 2 also declares that a violation of the new article that results
in harm to the public is a public nuisance regardless of whether the gun
industry member acted for the purpose of causing harm to the public (§
898-c 1 and 2).
Section 2 further provides for enforcement by the attorney general in
the name of the people of the state of New York or by any city corpo-
ration counsel on behalf of the locality (§ 898-d) and also provides for
a private right of action by any person, firm, corporation, or associ-
ation that has been damaged as a result of a gun industry member's acts
or omissions (§ 898-e).
Section 3: Severability clause.
Section 4. Provides that the act takes effect immediately.
Virtually every illegal firearm was once legal. Our country is awash
with legal and illegal firearms and the People are paying the price in
money and misery wrought by the illegal use of legal firearms. This
unacceptable situation poses specific harm to New Yorkers based largely
on their zip code and certain immutable characteristics such as race and
ethnicity. Given the ease with which legal firearms flow into the ille-
gal market -- in spite of stringent state and local restrictions -- and
given the specific harm illegal firearm violence causes certain New
Yorkers, those responsible for the sale, manufacture, importing, or
marketing of firearms should be held liable for the public nuisance
caused by such activities. This bill has been drafted to comport with
the Protection of Lawful Commerce in Arms Act (18 USC 5921) as construed
by the United States Court of Appeals for the Second Circuit in City of
New York v Beretta USA Corp., 524 F3d 384 (2d Cir 2008). Through the
PLCAA, the firearms industry is shielded from civil liability except
when the basis for that liability is a "predicate statute" that is
applicable to the sale or marketing of firearms. With the passage of
this bill, it is our hope that the right of the People to hold the
firearms industry accountable will be restored.
To be determined.
This act shall take effect immediately.
STATE OF NEW YORK
2021-2022 Regular Sessions
March 29, 2021
Introduced by M. of A. FAHY, ANDERSON, BURDICK, DINOWITZ, SEAWRIGHT,
SILLITTI, TAYLOR, L. ROSENTHAL, CARROLL, JACOBSON, STECK, THIELE,
PERRY, DARLING, EPSTEIN, OTIS, SIMON, DAVILA, MEEKS, BARRON, HEVESI,
PAULIN, LAVINE, J. RIVERA, COLTON, DICKENS, DILAN, JEAN-PIERRE,
PICHARDO, CRUZ, GRIFFIN, GOTTFRIED, SOLAGES, ABINANTI, GALEF, GONZA-
LEZ-ROJAS, KELLES -- read once and referred to the Committee on
Economic Development -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- reference
changed to the Committee on Codes -- committee discharged, bill
amended, ordered reprinted as amended and recommitted to said commit-
AN ACT to amend the general business law, in relation to the dangers to
safety and health and creation of a public nuisance caused by the
sale, manufacturing, distribution, importing and marketing of firearms
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative findings and intent. The legislature hereby
2 finds that the illegal use of firearms not only constitutes a public
3 nuisance as declared in article 400 of the penal law, but that the
4 effects of such nuisance contribute to the public health crisis of gun
5 violence in this state as declared by the legislature in the 2021-2022
6 legislative session. This nuisance poses specific harm to New Yorkers
7 based largely on their zip code and certain immutable characteristics
8 such as race and ethnicity. Illegal firearm violence has disproportion-
9 ately affected underserved black and brown neighborhoods in our cities
10 and throughout the state despite stringent state and local laws against
11 the illegal possession of firearms while, according to the Bureau of
12 Alcohol, Tobacco, Firearms and Explosives statistics, 74% of firearms
13 used in crimes in New York are purchased outside of New York. Thus, the
14 legislature further finds that given the ease at which legal firearms
15 flow into the illegal market, and given the specific harm illegal
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
 is old law to be omitted.
A. 6762--B 2
1 firearm violence causes certain New Yorkers, those responsible for the
2 illegal or unreasonable sale, manufacture, distribution, importing or
3 marketing of firearms may be held liable for the public nuisance caused
4 by such activities. Additionally, many New Yorkers, including many
5 children, are gravely injured or killed unintentionally due to the
6 firearm industry's failure to implement reasonable safety measures and
7 the legislature finds that this failure also warrants liability.
8 § 2. The general business law is amended by adding a new article
9 39-DDDD to read as follows:
10 ARTICLE 39-DDDD
11 SALE, MANUFACTURING, IMPORTING AND MARKETING OF FIREARMS
12 Section 898-a. Definitions.
13 898-b. Prohibited activities.
14 898-c. Public nuisance.
15 898-d. Enforcement.
16 898-e. Private right of action.
17 § 898-a. Definitions. For purposes of this article, the following
18 terms shall have the following meanings:
19 1. "Deceptive acts or practices" shall have the same meaning as
20 defined in article twenty-two-A of this chapter.
21 2. "Reasonable controls and procedures" shall mean policies that
22 include, but are not limited to: (a) instituting screening, security,
23 inventory and other business practices to prevent thefts of qualified
24 products as well as sales of qualified products to straw purchasers,
25 traffickers, persons prohibited from possessing firearms under state or
26 federal law, or persons at risk of injuring themselves or others; and
27 (b) preventing deceptive acts and practices and false advertising and
28 otherwise ensuring compliance with all provisions of article
29 twenty-two-A of this chapter.
30 3. "False advertising" shall have the same meaning as defined in arti-
31 cle twenty-two-A of this chapter.
32 4. "Gun industry member" shall mean a person, firm, corporation,
33 company, partnership, society, joint stock company or any other entity
34 or association engaged in the sale, manufacturing, distribution, import-
35 ing or marketing of firearms, ammunition, ammunition magazines, and
36 firearms accessories.
37 5. The terms "knowingly" and "recklessly" shall have the same meaning
38 as defined in section 15.05 of the penal law.
39 6. "Qualified product" shall have the same meaning as defined in 15
40 U.S.C. section 7903(4).
41 § 898-b. Prohibited activities. 1. No gun industry member, by conduct
42 either unlawful in itself or unreasonable under all the circumstances
43 shall knowingly or recklessly create, maintain or contribute to a condi-
44 tion in New York state that endangers the safety or health of the public
45 through the sale, manufacturing, importing or marketing of a qualified
47 2. All gun industry members who manufacture, market, import or offer
48 for wholesale or retail sale any qualified product in New York state
49 shall establish and utilize reasonable controls and procedures to
50 prevent its qualified products from being possessed, used, marketed or
51 sold unlawfully in New York state.
52 § 898-c. Public nuisance. 1. A violation of subdivision one or two of
53 section eight hundred ninety-eight-b of this article that results in
54 harm to the public shall hereby be declared to be a public nuisance.
55 2. The existence of a public nuisance shall not depend on whether the
56 gun industry member acted for the purpose of causing harm to the public.
A. 6762--B 3
1 § 898-d. Enforcement. Whenever there shall be a violation of this
2 article, the attorney general, in the name of the people of the state of
3 New York, or a city corporation counsel on behalf of the locality, may
4 bring an action in the supreme court or federal district court to enjoin
5 and restrain such violations and to obtain restitution and damages.
6 § 898-e. Private right of action. Any person, firm, corporation or
7 association that has been damaged as a result of a gun industry member's
8 acts or omissions in violation of this article shall be entitled to
9 bring an action for recovery of damages or to enforce this article in
10 the supreme court or federal district court.
11 § 3. Severability clause. If any clause, sentence, paragraph, subdivi-
12 sion, section or part of this act shall be adjudged by any court of
13 competent jurisdiction to be invalid, such judgment shall not affect,
14 impair, or invalidate the remainder thereof, but shall be confined in
15 its operation to the clause, sentence, paragraph, subdivision, section
16 or part thereof directly involved in the controversy in which such judg-
17 ment shall have been rendered. It is hereby declared to be the intent of
18 the legislature that this act would have been enacted even if such
19 invalid provisions had not been included herein.
20 § 4. This act shall take effect immediately.